Revised Sex Offender Flow Chart (October 2015 Edition)

With the General Assembly done for the year, it’s time to post an updated sex offender registration and monitoring flow chart. A major reorganization of the sex crimes in Chapter 14 necessitated more changes than usual.

The revised chart is available here. As always, sex offender registration issues are on the front and satellite-based monitoring (SBM) issues are on the back. Here is a summary of the changes.

Reorganization of sex crimes. Earlier this year, in a case called State v. Hicks, the court of appeals “strongly urge[d] the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another.” __ N.C. App. __, 768 S.E.2d 373 (2015). In S.L. 2015-181, the General Assembly did just that. Among other things, the legislation divides rapes and sexual offenses into separate, renumbered statutory sections, and more clearly identifies offenses as either forcible or statutory. For example, first-degree rape in existing G.S. 14-27.2 is recodified into G.S. 14-27.21, first-degree forcible rape, and G.S. 14-27.24, first-degree statutory rape. The bill then goes on to make conforming changes throughout the General Statutes, including major portions of the Juvenile Code and, of course, the sex offender registration and monitoring laws.

The newly codified crimes, all made effective for offenses committed on or after December 1, 2015, are added to the left-hand column of the front page of the flow chart. I continued to list the replaced crimes, identifying them as the “former” version of the law, because those are the statutes you should use when prosecuting or determining the registration consequences for pre–December 1 offenses. (The session law expressly states in section 48 that prosecutions for older offenses “are not abated or affected by this act.”) Keeping all of the offenses on the chart required a small reduction in font size. Sorry.

The newly codified crimes don’t appear to make any major substantive changes to the law. I did, however, notice that new G.S. 14-27.24, first-degree statutory rape, is not included in the revised list of reportable sex crimes set out in amended G.S. 14-208.6(5) (see section 32 of the act). As a result, that crime does not require registration as a sex offender, and it is therefore not listed in the left-hand column on the front page of the flow chart. I suspect that omission will be fixed next year, and that the change will probably be applied retroactively to cover offenses committed between December 1, 2015 and the date of the eventual correction. That would be permissible under our current understanding of the Ex Post Facto clause as applied to sex offender registration.

A related consequence of that crime not being reportable is that first-degree statutory rape is not subject to the inflated maximum sentence and post-release supervision rules of G.S. 15A-1340.17(f) and -1368.2(c), respectively. Instead, a person convicted of that crime will have only 12 additional months (not 60) built into his or her maximum sentence, and only 12 months of post-release supervision (not 5 years). That consequence cannot be fixed retroactively, because doing so would clearly increase a defendant’s punishment in violation of the Ex Post Facto Clause.

Change to statutory rape or sexual offense of a person who is 13, 14, or 15 years old. Session Law 2015-62 amends G.S. 14-27.7A to change statutory rape or sexual offense of a 13-, 14-, or 15-year-old to statutory rape or sexual offense of a person 15 years of age or younger. (The revised statute was then further parsed by S.L. 2015-181 into separate offenses for rape (G.S. 14-27.25) and sexual offense (G.S. 14-27.30)). The purpose of the change, as I understand it, is to address a situation that can arise under existing law when a victim’s age at the precise time of a rape or sexual offense is unclear. Existing G.S. 27.2(a)(1) applies only when the victim is under the age of 13. Existing G.S. 14-27.7A applies only when the victim is 13, 14, or 15. The crimes’ mutual exclusivity with respect to victim age can put the State in a bind if it cannot prove beyond a reasonable doubt that the victim was either 12 or 13 at the time of the offense.

To address that issue, the lower victim age boundary of G.S. 14-27.7A is removed, allowing the State to use that crime when it may not be crystal clear whether a victim is 12 or 13.

An additional consequence of the change, though, is that it broadens access to a Class C, non-reportable offense for defendants who are more than four but less than six years older than a victim who is 15 years of age or younger. For example, under prior law, the only age-based sexual offense charge appropriate for a 17-year-old defendant who committed a sexual offense against a 12-year-old victim would have been Class B1 first-degree sexual offense under G.S. 14-27.4(a)(1). Under the revised law, that same defendant could be charged with either Class B1 first-degree statutory sexual offense under new G.S. 14-27.29 (victim under 13 and defendant at least 12 and at least 4 years older than the victim) or Class C statutory sexual offense with a person who is 15 years of age or younger when the defendant is more than four but less than six years older than the person under new G.S. 14-27.30. As under existing law, the Class C version of the law does not require registration as a sex offender. Obviously the State is not obliged to pursue the less serious offense, but it may be helpful to be aware of the possibility.

Civil no-contact orders. The only other major change to the chart is a reference to a civil no-contact order for sex offenders described in new G.S. Chapter 50D, enacted by S.L. 2015-91. Effective October 1, 2015, the new law authorizes a permanent no-contact order for sex offenders when the victim did not seek an order under existing G.S. 15A-1340.50 at sentencing. John Rubin describes the new law on page 8 of his recently revised publication on Consequences of Conviction of Offenses Subject to Sex Offender Registration.